FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 200

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 applied

VAN NGHIA TRAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V660 of 2004

KIEFEL, RD NICHOLSON and DOWNES JJ

10 NOVEMBER 2004

MELBOURNE (VIA VIDEO LINK TO SYDNEY)

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

kiefel J

1                     I agree with the orders proposed by Nicholson J for the reasons given.

Associate:

Dated:              16 November 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

RD Nicholson j

2                     This is an appeal in respect of a judgment of Weinberg J given on 29 April 2004.  His Honour dismissed an application by the appellant pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The application sought to review a decision of a Deputy President of the Administrative Appeals Tribunals (‘the Tribunal’) made on 10 July 2003.  By that decision, the Tribunal affirmed a decision made by the respondent Minister on 28 January 2000 that the appellant should be deported pursuant to s 200 of the Migration Act 1958 (Cth) (‘the Act’). 

3                     The reasons of his Honour are reported as Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 509 and the reasons of the Tribunal have also been published.  This Court relies upon the facts and circumstances as stated by his Honour the primary judge.

4                     On the hearing of this appeal the appellant appears unrepresented.  He had previously been represented before his Honour.  He relies upon two grounds of appeal.  The second ground of appeal, as the respondent submits, does not allege any error of law.  Rather it is framed on the basis that the primary judge should have held other than he did and that he should have reached his decision in accordance with the submissions made to him by the appellant.  The ground relies on the same particularisation as was raised by appellant’s counsel before the primary judge.  Those issues were the Tribunal’s consideration of the risk the appellant posed to the community, the remorse of the appellant and the hardship of his deportation on his mother.  However, as the respondent also submits on the hearing of this appeal, the details of the ground in the notice of appeal here go beyond the matters actually articulated at first instance. 

5                     There was no error in the primary judge’s conclusion that the weight to be accorded to factors to be considered by the Tribunal was a matter for it.  It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight.  I agree with the respondent that this is even more particularly the case when the Tribunal is considering and applying a Ministerial Direction.  Such direction is to be used as a ‘guide’ and itself states that the decision-maker is to balance matters before it and the discretion under the Act is unfettered.  That is the case in respect of the relevant discretion arising here under s 200 of the Act.  The matter of the weight to be given to the evidence was in the domain of the Tribunal and not the primary judge on judicial review.  Even less so is it the domain of this Court on appeal from the primary judge.  The matters raised by the appellant as matters for relevant consideration by the Tribunal were as follows.  He raised the issue whether the risk to the community was ‘unacceptable’.  He also raised the issue of his remorse.  Additionally he raised the relationship between himself and his mother.  These issues were all adequately and properly addressed and considered by the Tribunal in its reasons.  I therefore do not consider the second ground of appeal establishes any error of law by the primary judge.

6                     The first ground of appeal alleges that the primary judge erred in holding that the Tribunal was not required to refer to every piece of evidence placed before it.  It also alleges that the primary judge wrongly applied such principle in the case of the cancellation of the appellant’s visa.  The reference to the principle was made by the primary judge in the penultimate paragraph to his reasons where he said at [28]:

‘Similarly, I consider that the Tribunal adequately addressed the relationship between the applicant and his mother at [21] of its reasons.  In a matter in which an applicant seeks a particular type of visa, the Tribunal is required to deal with all integers of an applicant’s claim.  It is not required to refer to every piece of evidence placed before it.  See generally Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, and VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447.  Although the applicant in the present case does not seek a visa, and is simply resisting deportation, an analogous principle may be said to apply.’

7                     In the passage from Paul,Allsop J (with whom Heerey J agreed) stated the following:

‘A failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made where the claim has been addressed is not a jurisdictional error constituted by a failure to take into account a relevant consideration’.

8                     There is no reason why that principle should not apply by analogy to the reasoning of a tribunal arising when an applicant is resisting an order for deportation.  I do not consider, therefore, that the primary judge was in error of law in applying that principle in respect of the reasoning of the Tribunal in this proceeding.

9                     For these reasons I conclude that the matters raised by the notice of appeal do not establish any error of law on the part of the primary judge.  Accordingly, the appeal must be dismissed.

Associate:

Dated:              16 November 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

downes J

10                  I agree with the orders proposed by Nicholson J for the reasons given.

Associate:

Dated:              16 November 2004